If Obama were to announce right now that he was going to prosecute those who engaged in torture and war crimes, I understand it could trigger a rash of unwanted pardons before Bush left office and therefore it's smart for him to hold his cards close.
But the reason that's being given for not pursuing prosecutions makes little sense:
"My orientation's going to be to move forward," Obama said. The attorney general has to stay above politics and "uphold the Constitution," Obama added, but his administration will focus on "getting things right in the future as opposed to looking at what we got wrong in the past."
Any decision to not pursue those who broke the law is in no way "above politics" -- and if we were going to apply this principle across the board, it would have as Ari Melber notes rather strange implications:
No one argues against prosecuting Bernie Madoff so that the Justice Department can focus on fixing the economy, going forward. In fact, faithfully and uniformly enforcing the law is crucial to "getting things right in the future." Any deterrence produced via criminal sanction is undermined when future, potential offenders see that a law is not actually enforced. People are more likely to follow the law when they see that breaking it carries consequences. This is such a basic foundation of our criminal system, justified by the elemental rationales of deterrence and retribution, it is quite hard to imagine that so many seasoned attorneys and Washington journalists honestly believe that the best way "forward" is to undermine deterrence and the rule of law.
Obama decision to appoint Eric Holder and Leon Panetta, who have made strong statements against torture, does indeed imply that he intends to "get it right" going forward.
But it is disconcerting that, as Glenn Greenwald observes, Obama indicated yesterday he is looking for a way to set up a system outside the courts where evidence obtained by torture can be used against Guantanamo detainees.
Glenn discusses Obama's interview with George Stephanopolous:
What he's saying is quite clear. There are detainees who the U.S. may not be able to convict in a court of law. Why not? Because the evidence that we believe establishes their guilt was obtained by torture, and it is therefore likely inadmissible in our courts (torture-obtained evidence is inadmissible in all courts in the civilized world; one might say it's a defining attribute of being civilized). But Obama wants to detain them anyway -- even though we can't convict them of anything in our courts of law. So before he can close Guantanamo, he wants a new, special court to be created -- presumably by an act of Congress -- where evidence obtained by torture (confessions and the like) can be used to justify someone's detention and where, presumably, other safeguards are abolished. That's what he means when he refers to "creating a process."
The synergy between right-wing fans of 24 who think torture is cool, members of the Bush administration who carried it out and the DC chattering class who mainstreamed it has created a climate where the political threat of directly dealing with the legacy of torture looms large.
But 70,000 people demanding a Special Prosecutor on change.gov argues that the political price to be paid for sweeping everything under the carpet might be even bigger.
Jane Hamsher blogs at firedoglake.com